Nursing Home Assessments – New CMS Rules

Episode 3
Categories: Regulations

This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Will Smith of Schenk Law LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.

Schenk:Hey out there. Thank you for joining us. My name is Rob Schenk.

Smith: And my name is Will Smith.

Schenk:And we’re on the ball today.

Smith: Clearly not.

Schenk:We are trial lawyers and our practice area is nursing home abuse and neglect in the state of Georgia. Welcome to the broadcast. For those of you who don’t know, we are a video podcast, so that means there are lots of ways you can consume this episode. You can watch us on YouTube or on our website,, or you can download the audio portion of this podcast on iTunes or Stitcher every Monday morning. So welcome you and we hope you have a good time today with us.

A lot of interesting things to talk about today. We’re going to be addressing some more of the new rules that have been implemented and instituted by the Centers for Medicare and Medicaid. We’re going to get into a particularly gruesome lawsuit against a nursing home. I guess the lawsuit isn’t gruesome. The allegations are pretty gruesome. And then we’re going to finish up the episode talking about, in my opinion, a pretty interesting topic – dealing with and addressing the health needs of prisoners.

Smith: Of aging and elderly prisoners. Prison nursing homes.

Schenk:That’s right. So let’s get to it today. In October of 2016, the Centers for Medicare and Medicaid announced several new rules that would go into effect in November of 2016. Probably one of the more popular ones, one of the more, I guess…

Smith: Sensational ones.

Schenk:…Was the fact that nursing homes that receive Medicare and Medicaid funding could no longer use arbitration in their admission documents. But probably slightly less well known to the extent that any of these rules are well known to anyone outside the persons in this office, are that long-term care facilities receiving Medicare and Medicaid must make some changes first to their compliance and ethics programs, but as well as how they initiate and assess residents and how quickly they need to do that.

So let’s talk about the first rule with the compliance to ethics. So what we have is that under this new rule, which again goes into effect November 28th unless it’s challenged – successfully challenged I should say – under the new rule, the nursing homes, long-term care facilities, must establish a compliance an ethics program. And the program must include written policies and procedures to reduce criminal, civil and administrative violations, and it must be reviewed and revised annually. Centers for Medicare and Medicaid Services imposes additional requirements on operating organizations with five or more facilities. These compliance and ethics programs must include annual training, a compliance officer and a designated liaison located at each facility.

So there are a couple of things that I think would be interesting to unpack. Number one is that we have ethical rules being implemented, and second of all, the rules are different depending on how large of an organization it is. What do you think about that?

Smith: Personally I’m not so sure that I’m a fine of delineating smaller providers versus larger providers. I think that any provider, regardless of the size, they all need to be held to the same high standard.

Schenk:Yeah, I agree. It’s almost kind of like they’re saying, “We’re not going to be as strict on a ‘mom and pop organization operation’” as they would a healthcare facility that operates in 60 different facilities. I agree. I don’t know if we should differentiate between those two things. I mean if you shouldn’t hire a convicted felon in one facility, I don’t think you should hire one in another, unless I’m reading something wrong on that statute.

Smith: For me, as a plaintiff’s attorney for a nursing home abuse and neglect residents, I’m looking at the individual residents. So somebody’s mother to me is my main concern or their father or their husband or their wife, brother or sister. I don’t care how large the organization is, which is taking care of them. They all need to be held to an extremely high standard. There shouldn’t be no mom and pop organization – there should not be different standards.

But at the same time, not to be such a negative Nancy, I am happy that CMS is reviewing their policies and they’re looking at this and they’re addressing a lot of concerns that a lot of us have had in the industry for a long time, and they’re making some changes. So there is a positive side to that. I’m glad that they’re enforcing ethical changes.

Schenk:Right, and I think some of this comes on the heels of the news, I would say, in the past year or two years, the financial exploitation of elders. You want to make sure you have staff that can identify and observe and see whether or not that’s taking place. They want to make sure they have staff that can identify when people are being abusive. I think that’s important. And it’s also important again on a higher level as a facility that is intended to care for the most vulnerable population that you don’t employ individuals that have a history of abusing elderly people.

Smith: And I can tell you that it is progressively getting better and better. I became a CAN – I want to say it was 2000 – so it was 16 years ago, and at the time, it was a two-week course, and I did not undergo, nor did my classmate undergo any background check whatsoever. Now that two-week course is, depending on the state, anywhere from three to six months. It’s a lot longer and they go through a more rigorous screening process, which is good, because again, you don’t want convicted felons, people with a history of abuse, history of theft or other problems, taking care of our most vulnerable citizens.

Schenk:Yeah, and I think from a standpoint that you can’t catch everybody, but I think here what CMS is trying to do is say, “Listen…”

Smith: Do your due diligence.

Schenk:Do your due diligence and let’s try to catch what we can. We’re not saying you have to do an FBI – what does the FBI do? They go back 30 years and they call your kindergarten teacher and things like that, but there are generalized background checks you can do, phoning up references, because Will, I know in your experience, I’m sure you’ve worked with people you would say to yourself like, “How do these people even get hired?”

Smith: Yeah, and I did. I will say this and I’ve always thought this despite the fact that we often sue nursing homes for the mistakes that their staff make – in general, nursing home staff are some of the kindest, most thoughtful, just generous and hardworking people out there. I did it off and on for eight years while I was going through college. It wasn’t a full time job for me, but the people who did it were just very kind, for the most part, and wonderful salt-of-the-earth people. But occasionally, you would meet somebody and you would just think, “Something’s not right with you. I don’t know why you’re doing this and I would not be surprised if you got some criminal skeletons in your closet.”

Schenk:And so again, it appears to me that with this portion of the new rule that the Centers for Medicare and Medicaid Services have implemented that they’re trying to catch this type of behavior within the staff.

But another portion of this new initiative by CMS deals with what happens when a nursing home intakes a resident, what you’re supposed to do. So it looks like the final rule updates the care plan and discharge planning requirements with the focus on person-centered planning.

First, CMS is requiring the facilities to fill up and implement a base care plan, a baseline care plan, in addition to the comprehensive person-centered care plan. The baseline care plan must be established within 48 hours of a resident’s admission. Further in response to comments, CMS updated the final rule requiring facilities to provide residents and their representatives with the summary of their baseline care plan.

Facilities can skip the baseline care plan and only develop the comprehensive care plan so long as it is established within 48 hours. CMS has expanded the required members of the interdisciplinary team who are responsible for developing the comprehensive person-centered care plan to include a nurse aid and a member of the food and nutrition services staff.

So I think in my experience with this, what they’re trying to address is when a nursing home or a long-term care facility intakes a resident, they don’t do a skin assessment. They don’t do a fall risk assessment until maybe three, four, five, six weeks later. They’re basically just feeding, taking care of, obviously they’ll do the medication – well sometimes – correctly, but that’s really all they’re caring about when this individual could be a high fall risk and they don’t know because they hadn’t done an assessment.

Smith: Or a two-person or a three-person transfer. These things are important. What’s disheartening is that CMS found that in 99 percent of the cases that nursing home long-term care facilities failed to meet the basic requirements of intake assessments. And these are extremely important because the CNAs and the floor nurses need to know. They need to know if this person is at risk for bedsores. Do we need to pay extra attention to make sure that they’re being turned? Does this person need assistance to the restroom? Do they need assistance dressing? What level of fall risk is this person? These things are vitally important.

Schenk:Right off the bat.

Smith: Right off the bat, the staff needs to know.

Schenk:Right, because I’m not saying… It’s kind of like… What’s the stat where you’re more likely to get into a car accident within two miles of your home, something like that, so I’m not saying you’re more likely to have – your loved one is more likely to be injured within the first 30 days, but generally, whether or not a nursing home is diligent with assessing, appropriately assessing the resident upon intake is an indicator of whether or not they’re going to get good care. And here, at least we’re getting it mandatory that something be in place, some type of observation of this individual is made to prepare for the preventions that we need to do. Do they need bedrails? Do they need pressure sensors? These types of things right off the bat will help in the long run.

Smith: Absolutely, 100 percent, because these are individuals that cannot take care of themselves, or to some level, these nursing homes are different from assisted living, where there’s a minimal amount of assistance. These nursing home residents can no longer take care of themselves. Their families can’t take care of them. So they have a high level of assistance that’s needed, and the staff has to be made aware of what that is. That way, when I go into a room to dress or to help change Ms. Johnson, do I take another person with me? I need to know this. Do we take a lift in there because she needs assistance getting up out of bed? We have to know these kinds of things, and if they don’t tell us, we don’t know and that’s where injuries can happen.

Schenk:And again, I think it’s fascinating that… I think in our experience, I think the federal government and state governments have a tendency to move fairly slow with legislation, with change. And you know that the situation has to be dire to get such a complete overhaul and change to an already existing rule. And you can see that this is the very first revision of these regulations since 1991.

Smith: Yeah, and when it comes to the level of care and the amount of negligence that occurs in nursing homes, it far outweighs any other area of what can be considered personal injury law. The state of nursing home care in America is embarrassing, and specifically the state of nursing home care in Georgia is extremely embarrassing. I think there might be one or two other states that are worse than Georgia for the level of care given to the elderly. Texas, I think, is the top offender. I can’t remember what the other one is.

Schenk:Everything’s bigger in Texas.

Smith: Everything’s bigger including elder abuse and neglect. Georgia though, Georgia’s an enormous offender, and we’ve got over 150-something counties. Every county has got two or three different nursing homes. It is a national tragedy. It really is.

Schenk:And speaking of nations, let’s segway into a segment where we highlight our neighboring nation Canada, where we highlight new lawsuits that have been filed. This one happens to be taking place in Toronto. It looks like a multi-million dollar class-action lawsuit has been launched against Rivera Nursing Homes after a woman says her father died from an infected bedsore that went unnoticed and festered into an oozing stage four ulcer.

Lori DeCurver, who is the daughter of the individual who passed, is quoted as saying, “He died a painful 13th century death while being looked after by a giant business entity that is making a ton of money on the basis of its promise to deliver reliable, professional healthcare to our parents. He deserved better than this.”

Smith: And this goes to the phrase that I constantly use all the time about these entities. There’s nothing wrong with making money. There’s nothing wrong with being a giant corporation. But it’s that phrase that we use constantly with juries, and that’s that pigs get fed, hogs get slaughter. This company is being a hog. You’re taking all of this money. You’re getting all of these benefits. You’re getting all of this profit and you let a man die a 13th century death. It is unforgiveable.

Schenk:Well it gets worse than that. So according to Amani Oakley, who’s the lawyer for the estate of Mr. DeCurver and Lori DeCurver, she is actually implementing what she hopes to be a class action lawsuit. I’m not an expert on class actions in Canada, but she’s hoping to get more plaintiffs, and the reason why she’s hoping to get more plaintiffs is that she has personally heard of and has seen reports of previous cases of neglect and abuse. She’s quoted saying her office has received numerous calls from people inquiring about legal action and she says her firm has received numerous complaints and that’s why she decided to launch the lawsuit, and she’s been hearing them for years and years and years.

One of the more egregious ones from this article is, according to her, an instance in which a resident was injured and left unattended after a fall, and then another – which I mean that happens – but another where there was a wound, an unexplained wound that had maggots in it. I mean when you have that happen, that’s when you know you are dealing with a nursing home that is basically dangerous to its residents.

And there are several reasons for that. I mean that’s a problem with nursing homes, but generally large companies that operate nursing homes, they either are understaffed or they don’t pay their staff well enough to look after these people.

Smith: Yeah, you’ve got to think about this, and I mentioned this earlier that by and large, CNAs and the nurses who work in these places are phenomenal individuals. I mean it is the toughest thing that I’ve ever done in my life. You’ve got to imagine working a 12-hour shift where you’re dealing with human waste, you’re dealing with residents who are biting you and scratching you. It is backbreaking labor. It is absolutely backbreaking labor lifting these people and moving them around. And you barely get time for a lunch break. You’ve got family members who are understandably mad that their loved ones aren’t getting all the care that they can get.

But the problem comes from – I’ve been in nursing homes and I’m not going to mention which one it was and I think it was eventually investigated by the FBI, I’ve been in a nursing home where I was the only CNA taking care of 30 residents.

Schenk:It’s a recipe for disaster.

Smith: It is impossible for a CNA to give the adequate or even the basic care to 30 people at once. It is simply impossible. And what happens is these nursing homes, to save money and to make more of a profit, they don’t hire enough staff. And so you’ve got maybe not horrible situations like the one I just described, but you’ve got CNAs who are taking care of 10 people. That’s too many. Mathematically, you cannot take care of every single person the way you should.

And then the other problem is you think about what I just described, which is an extremely horrible job – it is very difficult. And I was lucky. I made more per hour than the average CNA because my father owned the agency that I worked for as a CNA, but a lot of these CNAs are making minimum wage. So why would you work at a place where you’ve got backbreaking labor, you’re understaffed, underappreciated, you’re dealing with human waste all of the time, for the same amount of money you could make working at O’Charley’s or Taco Bell? Just go there.

I mean one of the things that needs to happen in the future is not only increased staffing, but these individuals need to make a lot more than minimum wage. You get what you pay for a lot of times, and unfortunately, when you do that, you have situations like we have in Toronto.

Schenk:And another unfortunate situation, and again, neither of us are licensed to practice law in Canada, but an unfortunate situation here is, again, this is the attorney – “Courts award very little for pain and suffering. If a person passes away from their injuries, their case drops down to very small numbers because there’s no major care component.”

That’s not the case in the United States, in most states in the United States, and in particular not in Georgia. In Georgia, damages in a death case like this, if death is proven, can be very substantial. There are all types of different damages, not just the component of lost wages or funeral expenses. You’re dealing with actual pain and suffering prior to the death. You have loss of the benefit of companionship of that individual to the family. There are all kinds of damage components that are available to you, at least in the state of Georgia, and that’s unfortunate because it appears a lot of this article is dedicated to the fact that the attorney representing these families is not excited about the prospect of being able to compensate this family.

Smith: And I want you to think about that pain and suffering too – a 13th century death. One of the individuals had a wound that had larvae, maggots, in it. We don’t have prisoners of war that have been water boarded who have faced more pain and suffering than that. And I mean this is somebody’s mother or father. It is a living nightmare. It is a living hell. And what’s even worse is a lot of these residents are not mentally capable of expressing outwardly pain and suffering. They’re not mentally capable of saying, “Hey, my back is hurting. My sacrum is hurting. I think I have an ulcer.”

So you’ve got an individual who has lived his or her entire life part of the Greatest Generation, and now they are in what I can only imagine is one of the many circles of hell that Dante talked about. They’re lying in bed in their own filth and waste and they’re in extreme pain and they’re being neglected and they can’t do anything about it. No one deserves that. No one deserves that. I’m not saying from the legal standpoint it’s necessarily criminal, but from just a humanitarian standpoint, it’s absolutely criminal. These people need to be taken care of.

Schenk:And we wish the very best for the family of Lori DeCurver and we wish success to Amani Oakley, the attorney in that situation. And speaking of criminal, it looks like we have an interesting story out of Prestonsburg, Kentucky. More than 200 jobs could be coming to eastern Kentucky if a proposal for a nursing home moves forward. We are looking at the possibility of 5 million in payroll based on 1.5 people working for every one bed for a skilled nursing facility to cater to and fill the needs of end of life inmates in that region of Kentucky.

Smith: And I know that a lot of people don’t necessarily have compassion or sympathy for prisoners, for inmates, and that’s understandable. But you’ve got to think some of these people are nonviolent offenders that just didn’t take the right path in life for whatever reason and they’re getting to the end of their life, and even the violent offenders who are getting to the end of life, I mean we as a society don’t want to be the type that punish people by not taking care of them. It’s even in our Constitution, you know, cruel and unusual punishment. So you’ve got these prisoners who are getting up there in age and they’re not due for release, so what do you do?

Schenk:And sometimes they are. A quote by an individual, it’s a Floyd County Judge Executive Ben Hale, I’m not sure what position a Floyd County judge executive is in Kentucky, but he’s obviously the one that’s spearheading this, but he says, “Even though these inmates could be paroled, they could have families that still don’t want them,” so you could have individuals that have met parole, but they won’t have anywhere to go because the families don’t want them.

But it is interesting though the criteria to be admitted to this prospective nursing home is that they still have to meet the criteria outlined by Social Security and their medical bills will be paid through Medicare or Medicaid. Prisoners from across the state of Kentucky would be eligible for the facility. Officials reiterated that those in the facility would not be a danger to the community. The ill prisoners are bedridden and some can’t feed or walk by themselves.

And so the reason why we thought this was an interesting story is only because this particular prison nursing home is being modeled after a similar facility that was opened up I want to say recently, but in the past year or so here in Georgia. It’s just an interesting thing. What philosopher said that you can judge the civility of a society by how it treats its prisoners? I guess these are the most vulnerable prisoners.

Smith: Yeah, absolutely. And I’m really curious to see what happens. If you’ve got, especially here in Georgia, like we said here earlier, if you’ve got a real crisis in treatment for civilian nursing homes, I’m very skeptical about the level of treatment these prisoners are going to get, the level of respect that they deserve just as humans…

Schenk:So this might be a good thing that this is the second facility of its kind and all eyes are on it and this might be a way…

Smith: And procedurally it’s going to be interesting because you’re not suing a private entity at this point.

Schenk:Yeah, if you’re a family member of a loved one that’s in this prison nursing home, you’d be suing, I guess, the state along with maybe whatever private organization is in charge of running it. Let’s see, that’s a good question.

Smith: So you’ve got a lot of procedurally, not to get into how that’s different, but you’ve got state immunity issues, you’ve got [00:28:58] issues, and even the damages component is different.

Schenk:Yeah, so that’s interesting. That’s something that hits close to home here in Georgia.

Smith: Yeah.

Schenk:And I think that about concludes our episode for today. Again, thank you for tuning in and we hope you enjoyed it. And just to let you know, our video podcast is available every Monday. You can download the audio portion of this podcast through Stitcher or iTunes, or if you like, you can watch the audio and video portion, the whole thing, on our website, which is, or you can check it out on YouTube. And again, my name is Rob Schenk.

Smith: And I’m Will Smith.

Schenk:And we will see you next time.

Smith: Enjoy your Monday.

Thanks for tuning into the Nursing Home Abuse Podcast. Please be sure to subscribe to this podcast on iTunes or Stitcher and feel free to leave us some feedback. And for more information on the topics discussed on this episode, check out the show website – That’s See you next time.